Union of India and Others Vs. T.G. Abraham and Others
EmailAppeal: Civil Appeal No.6547 of 1995
Petitioner: Union of India and Others
Respondent: T.G. Abraham and Others
Apeal: Civil Appeal No.6547 of 1995
Judges: S.B. MAJMUDAR & M. JAGANNADHA RAO, JJ.
Date of Judgment: Apr 22, 1997
Head Note:
SERVICE LAWS
Constitution
Articles 14, 16, 136 – Re-employment – Circular dated 23.2.88 introducing additional requirement of JWO for post of JTO-1 (Electrical) – Respondent No. 1, though having requisite experi-ence, but not a JWO – Juniors selected – Error removed by subse-quent memo dated 31.8.89 – Respondent No. 1 applying but not appearing for interview – Challenge laid to first circular – Tribunal directing to consider his case – Justification. Held that orders cannot be found fault with. Respondent No. 1 had rightly challenged the earlier order and he is not estopped.
Constitution
Articles 14, 16, 136 – Re-employment – Circular dated 23.2.88 introducing additional requirement of JWO for post of JTO-1 (Electrical) – Respondent No. 1, though having requisite experi-ence, but not a JWO – Juniors selected – Error removed by subse-quent memo dated 31.8.89 – Respondent No. 1 applying but not appearing for interview – Challenge laid to first circular – Tribunal directing to consider his case – Justification. Held that orders cannot be found fault with. Respondent No. 1 had rightly challenged the earlier order and he is not estopped.
JUDGEMENT:
ORDER
1. The Union of India and its officers have brought in chal-lenge the order of the Central Administrative Tribunal, Bench at Cuttack, Cuttack passed in favour of Respondent 1 herein. By the said order, the Tribunal has taken the view that the appellants while issuing memo dated 23-2-1988 calling for eligible persons to claim re-employment to the post of JTO-I(Electrical) had introduced an additional requirement that the applicant should hold the rank of Junior Warrant Officer (JWO) in addition to the requirement of 10 years’ experience in Electrical Trade on Air Force Aircraft and ground installation. Respondent 1 had the requisite experience, but he was not holding the rank of JWO. Consequently, he could not put forward his claim for being con-sidered for re-employment. Respondent 2 to 5,on the other hand,were his juniors in the lower grade,but they could apply and were selected for re-employment.It is this grievance which was canvassed by Respondent 1 before the Tribunal.It also tran-spired that subsequently,the authorities themselves realised the error in the earlier memo and consequently they issued a fresh circular dated 31-1-1989 by which it was mentioned that it was proposed to fill up a few vacancies in the rank of JTOs-I in various trades from amongst the JTOs-II working in ARC.So far as re-employment in the cadre of JTO-I (Electrical) is concerned,it was mentioned in the said circular that Ex-IAF persons with Electrical Trade having 10 years’ experience on Air Force Air-craft and ground installation would be considered.The said circu-lar obviously ran parallel to the viewpoint canvassed by Respond-ent 1 and on the basis of which he had submitted that the earli-er memo was defective.It is also not disputed that Respondent 1 did apply pursuant to the second circular of 31-1-1989,but there-after did not appear at the interviews which were held somewhere in February 1990 pursuant to the said second circular.In the meantime,he approached the Tribunal.The Tribunal after hearing the parties concerned took the view that when the basic require-ment of the Rules for re-employment for the cadre of JTO-I (Elec-trical) was only 10 years’ experience and there was no further requirement of the applicant being entitled to hold the rank of JWO,the first memo dated 23-2-1988 was contrary to the Rules. The result was that Respondent 1 was wrongly denied chance to compete for being re-employed on the said post of JTO-I (Electrical).This would have resulted then in voiding the appointments given to Respondents 2 to 5 pursuant to the said memo.However, their appointments were saved and were not quashed.The Tribunal consid-ering the equities of the case passed the impugned order and issued directions as under:
“However,we feel that quashing the selection at this late stage may do more harm than good.Therefore,in the interest of equity and justice,we direct that the respondents will consider the case of the applicant for promotion to the post of JTO Grade -I and if found suitable he would be given promotion from the date his juniors were promoted even by creating a supernumerary post,if necessary.The process of selection should be completed within sixty days from the date of receipt of a copy of the
judgment.”
2. It is this order of the Tribunal which has been seriously brought in challenge by the Union of India and its officers in this appeal by special leave.
3. The learned Senior Counsel appearing for the appellants, Mr.Iyer,submitted that Respondent 1 was not entitled to any relief for two obvious reasons. Firstly,he was already given a chance to be considered for re-employment pursuant to the second circular of January 1989.He did apply pursuant thereto,but did not think it fit to appear at the interview.Consequently,he cannot be permitted to blow hot and cold and to again contest on the basis that he was wrongly denied an opportunity to get re-em-ployment pursuant to the earlier memo.Secondly,it was submitted that even though the Rules may require the minimum qualification of 10 years’ experience,the authorities in their discretion with a view to get the best talent by way of re-employment,could impose as additional condition of the applicant being also of JWO’s rank.
4. The learned counsel for Respondent 1, Mr.Rawal on the other hand submitted that so far as the second circular was concerned,it itself accepted the viewpoint canvassed by him that the earlier memo was defective.Otherwise there would have been no occasion for the appellants themselves to issue the circular by giving up the additional requirement of the applicant holding the rank of JWO.He further submitted that as he was wrongly deprived of an opportunity to contest for promotion to the post of JTO-I (Electrical) pursuant to earlier memo dated 23-2-1988,if he would have contested as per the second circular,he would have obviously been junior to Respondents 2 to 5 who got selected earlier when Respondent 1 did not get any opportunity to contest qua them and therefore, Respondent 1 cannot be estopped from challenging the legality of earlier circular dated 23-2-1988. So far as the second ground was concerned,it was submitted that such was not the contention of the appellant before the Tribunal and even otherwise, the appellants themselves by issuing the second circu-lar clarified that the additional requirement for the applicant to hold the rank of JWO was superfluous and was not essential for being considered for re-employment.
5. Having given our anxious consideration to the rival conten-tions,we find that so far as the first circular dated 23-2-1988 is concerned,it certainly went beyond the requirements of the Rules governing the question of re-employment of the staff con-cerned to the said post of JTO-I (Electrical).The only require-ment was re-employment of ex -IAF persons with Electrical Trade having 10 years’ experience on Air Force Aircraft and ground installation.Respondent 1 admittedly fulfilled this qualifica-tion. He was therefore eligible to be considered for re-employ-ment.Still he was not permitted to contest because of the word-ing of the circular dated 23-2-1988 which required additional qualification for the applicant to hold the rank of Junior War-rant Officer.Therefore,the Tribunal was perfectly justified in taking the view that the selection pursuant to the aforesaid circular dated 23-2-1988 was not a regular and a legal one.Howev-er,the Tribunal has passed an equitable order in favour of Re-spondents 2 to 5 in not disturbing their appointments.
6. In these circumstances,the directions issued in paragraph 5 of the judgment of the Tribunal cannot be found fault with.It may also be noted that though second selection did take place pursu-ant to which interviews were also held on 6-2-1990,Respondent 1 cannot be estopped from challenging the earlier circular because he did not think it fit to appear at the interview at the second stage.The reason is obvious.If he was not permitted to contest pursuant to the circular dated 23-2-1988 for re-employment and was wrongly kept out and even if he did get selected pursuant to the second circular,an irreparable injury would have been caused to him by making him junior to those with whom he would have otherwise effectively competed.Consequently,no estoppel could be urged against Respondent 1 on this ground.
7. Under these circumstances,in our view the order passed by the Tribunal is perfectly justified in the facts and circumstanc-es of the case.The learned Senior Counsel for the appellant sub-mitted that this is not a case of promotion,but a case of re-employment. Be that as it may,even if it is re-employment,the re-employment is only of those limited class of persons who are eligible to apply for the re-employment as per the Rules. A total outsider cannot come and contest for such re-employment. Pursuant to the directions of the Tribunal, the appellants will have to consider the case of Respondent 1 for retrospective re-employ-ment according to the Rules. If he is found suitable,appropriate ranking and seniority will have to be given to him qua Respond-ents 2 to 5 as per relevant rules.Subject to this clarification,this appeal is dismissed with no order as to costs.Interim relief vacated.
1. The Union of India and its officers have brought in chal-lenge the order of the Central Administrative Tribunal, Bench at Cuttack, Cuttack passed in favour of Respondent 1 herein. By the said order, the Tribunal has taken the view that the appellants while issuing memo dated 23-2-1988 calling for eligible persons to claim re-employment to the post of JTO-I(Electrical) had introduced an additional requirement that the applicant should hold the rank of Junior Warrant Officer (JWO) in addition to the requirement of 10 years’ experience in Electrical Trade on Air Force Aircraft and ground installation. Respondent 1 had the requisite experience, but he was not holding the rank of JWO. Consequently, he could not put forward his claim for being con-sidered for re-employment. Respondent 2 to 5,on the other hand,were his juniors in the lower grade,but they could apply and were selected for re-employment.It is this grievance which was canvassed by Respondent 1 before the Tribunal.It also tran-spired that subsequently,the authorities themselves realised the error in the earlier memo and consequently they issued a fresh circular dated 31-1-1989 by which it was mentioned that it was proposed to fill up a few vacancies in the rank of JTOs-I in various trades from amongst the JTOs-II working in ARC.So far as re-employment in the cadre of JTO-I (Electrical) is concerned,it was mentioned in the said circular that Ex-IAF persons with Electrical Trade having 10 years’ experience on Air Force Air-craft and ground installation would be considered.The said circu-lar obviously ran parallel to the viewpoint canvassed by Respond-ent 1 and on the basis of which he had submitted that the earli-er memo was defective.It is also not disputed that Respondent 1 did apply pursuant to the second circular of 31-1-1989,but there-after did not appear at the interviews which were held somewhere in February 1990 pursuant to the said second circular.In the meantime,he approached the Tribunal.The Tribunal after hearing the parties concerned took the view that when the basic require-ment of the Rules for re-employment for the cadre of JTO-I (Elec-trical) was only 10 years’ experience and there was no further requirement of the applicant being entitled to hold the rank of JWO,the first memo dated 23-2-1988 was contrary to the Rules. The result was that Respondent 1 was wrongly denied chance to compete for being re-employed on the said post of JTO-I (Electrical).This would have resulted then in voiding the appointments given to Respondents 2 to 5 pursuant to the said memo.However, their appointments were saved and were not quashed.The Tribunal consid-ering the equities of the case passed the impugned order and issued directions as under:
“However,we feel that quashing the selection at this late stage may do more harm than good.Therefore,in the interest of equity and justice,we direct that the respondents will consider the case of the applicant for promotion to the post of JTO Grade -I and if found suitable he would be given promotion from the date his juniors were promoted even by creating a supernumerary post,if necessary.The process of selection should be completed within sixty days from the date of receipt of a copy of the
judgment.”
2. It is this order of the Tribunal which has been seriously brought in challenge by the Union of India and its officers in this appeal by special leave.
3. The learned Senior Counsel appearing for the appellants, Mr.Iyer,submitted that Respondent 1 was not entitled to any relief for two obvious reasons. Firstly,he was already given a chance to be considered for re-employment pursuant to the second circular of January 1989.He did apply pursuant thereto,but did not think it fit to appear at the interview.Consequently,he cannot be permitted to blow hot and cold and to again contest on the basis that he was wrongly denied an opportunity to get re-em-ployment pursuant to the earlier memo.Secondly,it was submitted that even though the Rules may require the minimum qualification of 10 years’ experience,the authorities in their discretion with a view to get the best talent by way of re-employment,could impose as additional condition of the applicant being also of JWO’s rank.
4. The learned counsel for Respondent 1, Mr.Rawal on the other hand submitted that so far as the second circular was concerned,it itself accepted the viewpoint canvassed by him that the earlier memo was defective.Otherwise there would have been no occasion for the appellants themselves to issue the circular by giving up the additional requirement of the applicant holding the rank of JWO.He further submitted that as he was wrongly deprived of an opportunity to contest for promotion to the post of JTO-I (Electrical) pursuant to earlier memo dated 23-2-1988,if he would have contested as per the second circular,he would have obviously been junior to Respondents 2 to 5 who got selected earlier when Respondent 1 did not get any opportunity to contest qua them and therefore, Respondent 1 cannot be estopped from challenging the legality of earlier circular dated 23-2-1988. So far as the second ground was concerned,it was submitted that such was not the contention of the appellant before the Tribunal and even otherwise, the appellants themselves by issuing the second circu-lar clarified that the additional requirement for the applicant to hold the rank of JWO was superfluous and was not essential for being considered for re-employment.
5. Having given our anxious consideration to the rival conten-tions,we find that so far as the first circular dated 23-2-1988 is concerned,it certainly went beyond the requirements of the Rules governing the question of re-employment of the staff con-cerned to the said post of JTO-I (Electrical).The only require-ment was re-employment of ex -IAF persons with Electrical Trade having 10 years’ experience on Air Force Aircraft and ground installation.Respondent 1 admittedly fulfilled this qualifica-tion. He was therefore eligible to be considered for re-employ-ment.Still he was not permitted to contest because of the word-ing of the circular dated 23-2-1988 which required additional qualification for the applicant to hold the rank of Junior War-rant Officer.Therefore,the Tribunal was perfectly justified in taking the view that the selection pursuant to the aforesaid circular dated 23-2-1988 was not a regular and a legal one.Howev-er,the Tribunal has passed an equitable order in favour of Re-spondents 2 to 5 in not disturbing their appointments.
6. In these circumstances,the directions issued in paragraph 5 of the judgment of the Tribunal cannot be found fault with.It may also be noted that though second selection did take place pursu-ant to which interviews were also held on 6-2-1990,Respondent 1 cannot be estopped from challenging the earlier circular because he did not think it fit to appear at the interview at the second stage.The reason is obvious.If he was not permitted to contest pursuant to the circular dated 23-2-1988 for re-employment and was wrongly kept out and even if he did get selected pursuant to the second circular,an irreparable injury would have been caused to him by making him junior to those with whom he would have otherwise effectively competed.Consequently,no estoppel could be urged against Respondent 1 on this ground.
7. Under these circumstances,in our view the order passed by the Tribunal is perfectly justified in the facts and circumstanc-es of the case.The learned Senior Counsel for the appellant sub-mitted that this is not a case of promotion,but a case of re-employment. Be that as it may,even if it is re-employment,the re-employment is only of those limited class of persons who are eligible to apply for the re-employment as per the Rules. A total outsider cannot come and contest for such re-employment. Pursuant to the directions of the Tribunal, the appellants will have to consider the case of Respondent 1 for retrospective re-employ-ment according to the Rules. If he is found suitable,appropriate ranking and seniority will have to be given to him qua Respond-ents 2 to 5 as per relevant rules.Subject to this clarification,this appeal is dismissed with no order as to costs.Interim relief vacated.
